# Yaqoob Husain & Ors v. State of U.P. Opp. Party

- **Citation:** (2021) 1 ILRA 543
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-16
- **Case number:** Crl. Misc. Recall Application No. 3 of 2020
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yaqoob-husain-ors-v-state-of-u-p-opp-party-46109
- **Pages:** 14

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973-Section 401/397 & Indian
Penal Code,1860-Sections 323/34 and
544 INDIAN LAW REPORTS ALLAHABAD SERIES
324/34-recall
application-rejectioncounsel not appeared-order cannot be
recalled-Bar expressed u/s 362 Cr.P.C. is
clear, that once the court had signed its
judgment, it shall not alter or review the
same-legislature
intentionally
put
a
safeguard-if any leverage is granted,
orders are permitted to be recalled on the
ground of absence of counsel, it would
cause great chaos-in the present case final
orders have been passed on merits by the
court after perusal of the records and
application of mind, though the counsel
for the revisionist in respective cases were
not
present-the
prayer
for
recall
is
rejected.(Para 1 to 46)

The application is rejected. (E-5)

List of Cases Cited:

## Text

_Characters 0–39,664 of 45,465. This is a partial read: ask again with offset=39664 for what follows._

1 All. Yaqoob Husain & Ors. Vs. State of U.P.
543
them nor placed any justification for their
non examination. Although the prosecution
is not bound to produce so many
prosecution witnesses and the prosecution
case can succeed only on the evidence of a
single witness if he is reliable, but non
examination of such witnesses, without any
justification whose presence at the time of
occurrence was natural and examination
such witnesses whose presence has been
doubtful, further creates doubtful in the
prosecution case.

27. In addition to above, the
prosecution
has
not
examined
the
Investigating Officer who collected the
sample of ashes of crops and residue of
exploded bombs and further recovered
ashes or residue of bombs were neither
produced before the trial Court nor were
sent for chemical examination to prove
whether it was ashes of crops or not or
whether it was residue of any exploded
bombs. Failure of prosecution to produce
such important evidence, further creates
doubt in prosecution story.

28. In the light of above discussion, I
am of the view that the prosecution has
miserably failed to prove its case beyond
reasonable doubt. The impugned judgment
and order passed by trial Court is liable to
be set aside and the appellants are entitled
to be acquitted.

29. I am, therefore, unable to uphold
the
conviction
and
sentence
of
the
appellants. The impugned judgment and
order, passed by the Trial Court, is
accordingly set aside. The appellants are
acquitted. Consequently appeal is allowed.

30. The appellants are on bail, their
bail bonds are cancelled and sureties are
discharged.

31. Keeping in view the provision of
Section 437-A of the Code, appellants are
hereby directed forthwith to furnish a
personal bond of a sum of Rs.20,000/- each
and two reliable sureties each of the like
amount before the trial Court, which shall
be effective for a period of six months,
along with an undertaking that in the event
of filing of Special Leave Petition against
this judgment or for grant of leave,
appellants on receipt of notice thereof, shall
appear before Hon'ble Supreme Court.

32. A copy of this judgment along
with lower court record be sent to Trial
Court by FAX for immediate compliance.
----------
(2021)01ILR A543
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.12.2020

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Crl. Misc. Recall Application No. 3 of 2020
In
Criminal Revision No. 1649 of 1989
Connected with
Criminal Revision Nos. 1511 of 1992, 904 of
1995, 415 of 1996, 712 of 1997, 1202 of 2000 &
57 of 1996

Yaqoob Husain & Ors. ...Applicants
Versus
State of U.P. ...Opp. Party

Counsel for the Applicants:
Sri V.P. Srivastava, Ms. Sufia Saba, Sri K.M.
Tripathi, Sri Shadab Ali

Counsel for the Opp. Party:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure,1973-Section 401/397 & Indian
Penal Code,1860-Sections 323/34 and
544 INDIAN LAW REPORTS ALLAHABAD SERIES
324/34-recall
application-rejectioncounsel not appeared-order cannot be
recalled-Bar expressed u/s 362 Cr.P.C. is
clear, that once the court had signed its
judgment, it shall not alter or review the
same-legislature
intentionally
put
a
safeguard-if any leverage is granted,
orders are permitted to be recalled on the
ground of absence of counsel, it would
cause great chaos-in the present case final
orders have been passed on merits by the
court after perusal of the records and
application of mind, though the counsel
for the revisionist in respective cases were
not
present-the
prayer
for
recall
is
rejected.(Para 1 to 46)

The application is rejected. (E-5)

List of Cases Cited:

1. Asit Kumar Kar Vs St. of W.B. & ors.(2009) 2
SCC 703

2. Vishnu Agarwal Vs St. of U.P. & anr.(2011) 14
SCC 813

3. Santosh Vs St. of U.P.(2009) 16 SCC 400

4. CBI Vs St. of U.P. & ors.(2015) 11 ADJ 739

5. Mithai Lal Vs St. of U.P. & ors. (2008)

6. Raj Narain & ors. Vs The St. (1959) AIR Alld. 315

7. St. of Ori. Vs Ram Chander Agarwala &
ors.(1979) 2 SCC 305

8. New India Assurance Co. Ltd. Vs Krishna
Kumar Pandey,Manu/SC/1923/2019

9. Chandrabali & anr. Vs St.(1979) Cri.L.J. 1218

10. Smt. Sooraj Devi Vs Pyare Lal & anr.(1981)
1 SCC 500

11. Hari Singh Mann Vs Harbhajan Singh Bajwa
& ors.(2001) 1 SCC 169

12. St. of Ker.Vs M.M.Manikantan Nair (2001) 4
SCC 752

13. R. Annapurna Vs Ramadugu Anantha
Krishna Sastry & ors.(2002) 10 SCC 401

14. St.Reprtd. by DSP,SB CID,Chennai Vs K.V.
Rajendran & ors.(2008) 8 SCC 673

15. Sunita Jain Vs Pawan Kumar Jain &
ors.(2008) 2 SCC 705

16. Surya Baksh Singh Vs St. of U.P.(2014) 14
SCC 222

17. Mohd. Zakir Vs Shabana & ors.(2018) 15
SCC 316

18. Sanjeev Kapoor Vs Chandana Kapoor &
ors.(2020) AIR SC 1064

19. Parveen Vs St. of Har.(2020), CRLA
No.s750-751 of 2020

20. Smt. Farhana Vs St. of U.P. & anr.(2012),
Crl. Rev. No. 2930 of 2012

21. K.S. Panduranga Vs St. of Karn. (2013) 3
SCC 721

(Delivered by Hon'ble Rohit Ranjan Agarwal, J.)

1. In all these seven criminal
revisions, application for recalling the final
order passed by coordinate Bench of this
Court has been moved on the ground that
the same was passed due to non presence of
the counsel for the revisionists, as such, all
the matters are being heard and decided by
a common order, and Criminal Revision
No.1649 of 1989 is taken as the leading
case.

2. In Criminal Revision No.1649 of
1989, the order dated 31.07.2019, which is
sought to be recalled, is extracted here as
under:

"1. Called in revise. None appeared to
press this revision. In the circumstances, I
myself have perused the record.
1 All. Yaqoob Husain & Ors. Vs. State of U.P.
545

2. This criminal revision under Section
401 read with Section 397 Cr.P.C. has
been filed aggrieved by judgment and order
dated 04.07.1989 passed by 4th Additional
Munsif Magistrate, Moradabad in Case No.
507 of 1988 convicting and sentencing
revisionists under Sections 323/34 and
324/34
I.P.C.
Thereagainst
accusedrevisionists preferred Criminal Appeal No.
83 of 1989 which has been dismissed by
Sessions Judge, Moradabad vide judgment
and order dated 08.11.1989. This revision
has been filed challenging both the
aforesaid orders.

3. Having gone through the record, I
do not find any manifest error or otherwise
illegality, procedural or otherwise, so as to
justify interference in criminal revision.

4. Dismissed.

5. The revisionists Yaqoob Husain and
Kamal Anwar are on bail. Their bail bonds
and surety bonds are cancelled. The Chief
Judicial Magistrate, Moradabad shall
cause them to be arrested and lodged in
jail to serve out sentence passed against
them. The compliance shall be reported
within two months.

6. Certify this judgment to the lower
Court immediately."

3. In the recall application the ground
taken is that the revisionist was enlarged on
bail in the year 1989 and thereafter this
case was looked after by his uncle who was
in contact with the concerned advocate. As
the counsel was designated as senior
advocate, he lost in touch and the matter
was finally decided on 31.07.2019. It is
contended that the said order be recalled
and the criminal revision be restored to its
original number.

4. In other revisions, which are also
decided on various dates in the absence of
counsel, similar prayer has been made for
recalling the order passed by coordinate
Bench and the matter be restored for
decision afresh.

5. On behalf of the applicantsrevisionists Sri Sanjeev Pandey, Sri Sunil
Kumar, Sri Awadhesh Prasad Pandey, Sri
Girish Tiwari, Sri Akhilesh Tripathi, Ms.
Sufia Saba and Sri Shiva Ji Singh Sisodiya,
Advocates, appeared and advanced their
submissions. Sri D.K. Srivastava, learned
A.G.A. appeared for the State.

6. The sole question which emerges
for consideration is, as to whether in view
of bar of Section 362 Cr.P.C., the judgment
or order rendered/passed by any coordinate
Bench can be recalled though passed in the
absence of counsel ?

7. Addressing on this question, Sri
Sanjeev Pandey submitted that bar, as
contained in Section 362 Cr.P.C., is in
regard to altering or reviewing the
judgment or order, while in the present case
the revision was decided in absence of
counsel, thus, it was not a judgment or
order and it can be recalled, as no prayer
for review or altering the judgment has
been made.

8. Reliance has been placed upon a
decision of the Apex Court in case of Asit
Kumar Kar vs. State of West Bengal and
Others (2009) 2 SCC 703. Relevant paras
7 and 8 of the judgment is extracted here as
under :

"6. There is a distinction between a
petition under Article 32, a review petition
and a recall petition. While in a review
petition the Court considers on merits
where there is an error apparent on the
face of the record, in a recall petition the
Court does not go into the merits but
546 INDIAN LAW REPORTS ALLAHABAD SERIES
simply recalls an order which was passed
without giving an opportunity of hearing to
an affected party.

7. We are treating this petition under
Article 32 as a recall petition because the
order passed in the decision in All Bengal
Excise
Licensees'
Association
v.
Raghabendra Singh and Ors. (2007) 11
SCC 374 cancelling certain licences was
passed without giving opportunity of
hearing to the persons who had been
granted licences."

9. Reliance was also placed upon a
decision in the case of Vishnu Agarwal vs.
State of Uttar Pradesh and Another
(2011) 14 SCC 813. Relevant para 6 of the
judgment is extracted here as under :

"6. In our opinion, Section 362 cannot
be considered in a rigid and over technical
manner to defeat the ends of justice. As
Brahaspati has observed:

"Kevalam Shastram Ashritya Na
Kartavyo Vinirnayah Yuktiheeney Vichare
tu Dharmahaani Prajayate"

which means:

The Court should not give its
decision based only on the letter of the law.

For if the decision is wholly
unreasonable, injustice will follow."

10. Reliance has also been placed
upon decision of Santosh vs. State of U.P.
(2009) 16 SCC 400. Relevant paras 2, 3
and 4 of the judgment is extracted here as
under :

"2. Though many points were urged in
support of the application it is not
necessary to go into those in detail.

3. While issuing notice on 7.11.2008 it
was indicated that the matter may be
remitted to the High Court for fresh
hearing as the revision petition was
dismissed in the absence of learned
Counsel for the appellant. During the
hearing of the application learned Counsel
for the appellant indicated various reasons
for which there was non appearance on the
day the matter was taken up. That being so,
it would be appropriate to set aside the
impugned order and remit the matter to the
High Court for a fresh consideration on
merits.

4. To avoid unnecessary delay let the
parties appear before the High Court on
24.3.2009 so that a date of hearing can be
fixed. The Hon'ble Chief Justice of the High
Court is requested to post the matter before
an appropriate Bench. The appeal is
allowed."

11. He next submitted that in case of
Central Bureau of Investigation vs. State
of U.P. and others 2015(11) ADJ 739, this
Court relying upon decisions, cited above,
recalled the order and restored the revision.
Relevant part of the order are extracted
here as under :

"In view of the aforesaid discussion
this Court is of the firm view that Section
362 Cr.P.C. only bars a "review" of the
order. It does not bar "recall" of any order
specially if the order has been passed ex
parte against the principle of natural
justice.

Accordingly, the recall application is
allowed. The order dated 7.3.2013 is
recalled. List this matter alongwith Crl.
Revision No. 3385 of 2008 (old Crl.
Revision (Defective) No. 457 of 2008)
before the appropriate bench in the next
cause list."

12. Reliance has also been placed
upon a decision in case of Mithai Lal vs.
State of U.P. and others decided on
12.9.2008 wherein the recall application
1 All. Yaqoob Husain & Ors. Vs. State of U.P.
547
was allowed relying upon the decision of a
Full Bench of this Court.

13. Sri Sunil Kumar, Advocate,
adding further to the argument made by
earlier counsel, submitted that in view of
sub-section (2) of Section 401 Cr.P.C., no
order under this section shall be made to
the prejudice of the accused or other person
unless he had an opportunity of being heard
either personally or by pleader in his own
defence.

14. Thus reading Section 362 along
with sub-section (2) of Section 401 Cr.P.C.,
though the power of altering or reviewing
of the judgment does not vest with the
Court once it is signed, but, the power of
recall exist so as to give effect to subsection
(2)
of
Section
401
Cr.P.C.
According to him, the decision by the
Court in the absence of the counsel of the
revisionist amounted to prejudice being
caused to the accused and was in the teeth
of sub-section (2) of Section 401 Cr.P.C.

15. Apart from making the said
submission, no other submission was
advanced while all the other counsel
appearing on behalf of different parties
endorsed the argument advanced by two
counsels.

16. Sri D.K.Srivastava, learned
A.G.A.
while
setting
note
for
his
argument
placed
before
the
Court
judgment of Full Bench of this Court in
the case of Raj Narain and others vs.
The State AIR 1959 Allahabad 315,
wherein by a majority view, it was held
that the power to revoke, review, recall or
alter its own earlier decision in a criminal
revision and rehearing the same exist in
the High Court, while the then Chief
Justice Hon'ble O.H.Mootham gave his
minority view that the power of review or
recall does not exist.

17. Learned A.G.A. then submitted
that the judgment in Raj Narain and
others (supra) was considered by the
Apex Court in case of State of Orissa vs.
Ram Chander Agarwala and others
(1979) 2 SCC 305 wherein the minority
view of this Court was upheld and the
Court held that High Court was not
competent to review or revise its own
judgment in view of the bar as contained
in Section 369 Cr.P.C., as it was then.
Relevant para 20 of the judgment are
extracted here as under :

"Before concluding we will very
briefly refer to cases of this Court cited by
counsel on both sides. 1958 S.C.R. 1226
relates to the power of the High Court to
cancel bail. The High Court took the view
that under Section 561A of the Code, it had
inherent power to cancel the bail, and
finding that on the material produced
before the Court it would not be safe to
permit the appellant to be at large
cancelled the bail, distinguishing the
decision in 1945 Law Reports and 72
Indian Appeals (supra) and stated that the
Privy Council was not called upon to
consider the question about the inherent
power of the High Court to cancel bail
under Section 561A. In Sankatha Singh v.
State of U.P. (1962) (2) Supp. 817, this
Court held that Section 360 read with
Section 424 of the CrPC specifically
prohibits the altering or reviewing of its
order by a court. The accused applied
before a succeeding Sessions Judge for rehearing of an appeal. The learned Judge
was of the view that the appellate court had
no power to review or restore an appeal
which has been disposed of. The Supreme
Court agreed with the view that the
548 INDIAN LAW REPORTS ALLAHABAD SERIES
appellate court had no power to review or
restore an appeal. this Court, expressing its
opinion that the Sessions Court had no
power to review or restore an appeal
observed that a judgment, which does not
comply with the requirements of Section
369 of the Code, may be liable to be set
aside by a superior court but will not give
the appellate court any power to' set it
aside himself and rehear the appeal
observing that "Section 369 read with
Section 424 of the Code makes it clear that
the appellate court is not to alter or review
the judgment once signed, except for the
purpose of correcting a clerical error.
Reliance was placed on a decision of this
Court
in
Superintendent
and
Remembrancer of Legal Affairs W.B. v.
Mohan Singh (supra) by Mr. Patel, learned
Counsel for the respondent wherein it was
held that rejection of a prior application
for quashing is no bar for the High Court
entertaining a subsequent application as
quashing does not amount to review or
revision.
This
decision
instead
of
supporting the respondent clearly lays
down, following Chopra's case (supra) that
once a judgment has been pronounced by a
High Court either in exercise of its
appellate or its revisional jurisdiction, no
review or revision can be entertained
against that judgment as there are no
provisions in the Criminal Procedure Code
which would enable the High Court to
review the same or to exercise revisional
jurisdiction. This Court entertained the
application for quashing the proceedings
on
the
ground
that
a
subsequent
application to quash would not amount to
review or revise an order made by the
Court. The decision clearly lays down that
a judgment of the High Court on appeal or
revision cannot be reviewed or revised
except in accordance with the provisions of
the
Criminal
Procedure
Code.
The
provisions of Section 561A of the Code
cannot be invoked for exercise of a power
which is specifically prohibited by the
Code."

18. Reliance was also placed in case
of New India Assurance Co. Ltd. vs.
Krishna
Kumar
Pandey,
Manu/SC/1923/2019 wherein the Apex
Court while considering the scope of
revisional jurisdiction under Section 397
Cr.P.C. and the bar of Section 362, held
that High Court cannot venture to do
something which it was not empowered to
do and granted benefit where in the garb of
correction, the judgment was modified.
Relevant para 12 of the judgment are
extracted herein as under :

"The case on hand is one where the
Respondent secured an order from the
High Court, behind the back of his
employer that his conviction will not have
an impact upon the service career of the
Respondent. The High Court did not have
the power to pass such an order. If at all,
the High Court could have invoked, after
convicting the Respondent, the provisions
of the Probation of Offenders Act, 1958, so
that the Respondent could take shelter, if
eligible, Under Section 12 of the said Act.
In this case, the High Court ventured to do
something which it was not empowered to
do. Therefore, the Respondent cannot take
umbrage Under Section 362 of Code of
Criminal Procedure. The second reason
why the argument of the learned Senior
Counsel for the Respondent is fallacious is
that
the
Respondent
himself
was a
beneficiary of what he is now accusing the
Appellant of. As we have stated earlier, the
criminal revision petition filed by the
Respondent in Cr.R. No. 402 of 2012 was
disposed of by the High Court by a
judgment dated 29.06.2012. Thereafter the
1 All. Yaqoob Husain & Ors. Vs. State of U.P.
549
Respondent
moved
a
Miscellaneous
Application in Criminal case No. 8951 of
2012 purportedly for the correction of the
order. There was neither an arithmetical
nor a clerical error in the judgment of the
High Court, warranting the invocation of
Section 362 Code of Criminal Procedure.
The Respondent cleverly borrowed the
language of Section 362 Code of Criminal
Procedure to affix a label to his petition
and the High Court fell into the trap. After
having invited an order, which, by the very
same argument of the Respondent, could
not have been passed, it is not open to the
Respondent today to contend that there was
no jurisdiction for the High Court to pass
such an order. It is nothing but a case of
pot calling the kettle black."

19. I have learned learned counsel for
the parties and perused the material on
record.

20. The question, which has cropped
up
for
consideration,
as
to
the
maintainability of recall application in view
of bar of Section 362 Cr.P.C., had been
under consideration for long time. The
Apex Court as well as different High
Courts had been constantly addressing and
adjudicating on the question of bar of
Section 362 Cr.P.C.

21. Before this Court, the controversy
for the first time erupted before their
Lordships in the year 1958 when the old
Criminal Procedure Code was in existence
and the question, which was referred to the
Full Bench was,

"whether this Court has power to
revoke, review, recall or alter its own
earlier decision in a criminal revision and
rehear
the
same?
If
so,
in
what
circumstances?"

22. The Full Bench constituted in Raj
Narain and others (supra) by a majority
view, held as under :

"105. Our answer to the question
referred is as follows:

1. That this Court has power to
revoke, review, recall or alter its own
earlier decision in a criminal revision and
rehear the same.

2. That this can be done only in cases
failing under one or the other of the three
conditions mentioned in Section 561-A,
namely:

(i) for the purpose of giving effect to
any order passed under the Code of
Criminal Procedure;

(ii) for the purpose of preventing
abuse of the process of any Court;

(iii) for otherwise securing the ends of
justice."

23. While Chief Justice Mootham was
of the view that as soon as a judgment in a
criminal revision is signed and sealed,
Court becomes functus officio and has no
power to revoke, review, recall or alter the
order it has already made. Relevant para 16
of the judgment in Raj Narain and others
(supra) is extracted here as under :

"In all these cases there is, I think, as
assumption, express or implied, that the
provisions of the Code are subject to S.
561A. That assumption, for reasons which I
have, endeavoured to state, I think to be
unfounded. In my opinion this Court, as
soon as its judgment in a criminal revision
case has been signed and sealed, becomes
functus officio and has no power to revoke,
review, recall or alter the order it has
already made. I assume of course that that
order was made in the exercise of its
jurisdiction: if for any reason the Court
makes an order without jurisdiction that
550 INDIAN LAW REPORTS ALLAHABAD SERIES
order or judgment is a nullity and the
application in which it was made must be
reheard."

24.

While
deciding
a
similar
controversy, the Hon'ble Supreme Court in
State of Orissa vs. Ram Chander
Agarwala and others (supra) while
considering the scope of Section 369
Cr.P.C., as it was then, upheld the minority
view of Chief Justice Mootham and held
that once judgment was pronounced by
High Court either in exercise of appellate
or revisional jurisdiction, no review or
revision can be entertained against that
judgment as there is no provision in the
Criminal Procedure Code.

25. In case of Chandrabali and
another vs. State 1979 Cri.L.J. 1218, the
Division Bench of this Court had a
occasion to consider the scope of Section
362 (Section 369 of old Act) and held as
under :

"8. It may be pointed out that even if
there was any ambiguity regarding the
applicability of Section 369 of the Code to
judgments passed by this Court the same
has been completely removed by the
provision made in Section 362 of the new
Code viz. Cr. P.C. 1973. Section 352 of the
new Code provides as follows:

"Save as otherwise provided by
this Code or by any other law for the time
being in force, no court, when it has signed
its judgment or final order disposing of a
case, shall alter or review the same except
to correct a clerical or arithmetical error."

Section 369 of the old Code
provided as follows:

"Save as otherwise provided by
this Code or by any other law for the time
being in force, or in the case of a High
Court, by the Letters Patent or other
instrument constituting such High Court,
no court when it has signed its judgment,
shall alter or review the same, except to
correct a clerical error."

"Thus under Section 362 of the
new Code a judgment which has been
signed can be altered or reviewed only for
correcting a clerical or arithmetical error.
No such error has been pointed out in
present
petition
and,
therefore,
the
judgment passed by Hon'ble S.K. Kaul, J.
cannot be altered, reviewed or substituted.
The same view was taken by V.N. Varma. J.
in Badri Prasad Rastogi v. State of U.P.
1979 All LJ 59 we are in respectful
agreement with the view taken by the
learned Judge.

9. We may also point out that in the Full
Bench case of Raj Narain (supra) it was
observed in the majority judgment that
Section 561 A, did not authorise this Court to
rehear a case where the applicant or
appellant was not heard due to some fault of
his or his counsel. Thus the applicant cannot
gel any assistance even from the majority
judgment in Raj Narain's case (supra) which
on this point has not been overruled by their
Lordships of the Supreme Court. Thus the
applicant in the case on hand will not be
entitled to claim rehearing even if we were to
hold that the applicant could invoke inherent
jurisdiction of this Court reserved under
Section 482 of the Cr. P.C."

26. In case of Smt. Sooraj Devi vs.
Pyare Lal & Another (1981) 1 SCC 500
the Apex Court while considering the scope
of Section 482 Cr.P.C. and bar imposed by
Section 362 Cr.P.C. held that attempt to
invoke that power can be of no avail.
Relevant para 5 of the judgment is
extracted here as under :

"The appellant points out that he
invoked the inherent power of the High
1 All. Yaqoob Husain & Ors. Vs. State of U.P.
551
Court saved by Section 482 of the Code
and that notwithstanding the prohibition
imposed by Section 362 the High Court had
power to grant relief. Sankatha Singh v.
State of U.P. AIR1962SC1208 . It is true
that the prohibition in Section 362 against
the Court altering or reviewing its
judgment is subject to what is "otherwise
provided by this Code or by any other law
for the time being in force". Those words,
however, refer to those provisions only
where the Court has been expressly
authorised by the Code or other law to
alter or review its judgment. The inherent
power of the Court is not contemplated by
the saving provision contained in Section
362 and, therefore, the attempt to invoke
that power can be of no avail."

27. Similarly in Hari Singh Mann
vs. Harbhajan Singh Bajwa and others
(2001) 1 SCC 169 the Apex Court while
considering the scope of Section 362
Cr.P.C., held as under :

"10. Section 362 of the Code mandates
that no Court, when it has signed its
judgment or final order disposing of a case
shall alter or review the same except to
correct a clerical or arithmetical error. The
Section is based on an acknowledge
principle of law that once a matter is
finally disposed of by a Court, the said
Court in the absence of a specific statutory
provision become functus officio and
disentitled to entertain a fresh prayer for
the same relief unless the former order of
final disposal is set aside by a court of
competent
jurisdiction
in
a
manner
prescribed by law. The court becomes
functus officio the moment the official
order disposing of a case is signed. Such an
order cannot be altered except to the extent
of correcting a clerical or arithmetical
error. The reliance of the respondent on
Talab Haji Hussain's case (supra) is
misconceived. Even in that case it was
pointed that inherent powers conferred on
High Courts under Section 561A (Section
482 of the new Code) has to be exercised
sparingly, carefully and with caution and
only where such exercise is justified by the
tests specifically laid down in the section
itself. It is not disputed that the petition
filed under Section 482 of the Code had
been finally disposed of by the High Court
on 7-1-1999. The new Section 362 of the
Code which was drafted keeping in view
the recommendations of the 41st Report of
the law Commission and the Joint Select
Committees appointed for the purpose, has
extended the bar of review not only to the
judgment but also to the final orders other
than the judgment."

28. It has been constant view of the
Apex Court that only a clerical or
arithmetical error can be corrected and no
more, in view of bar of Section 362 Cr.P.C.
The same view was reiterated in State of
Kerala vs. M.M.Manikantan Nair (2001)
4 SCC 752. Relevant para 6 of the
judgment is extracted here as under :

"The Code of Criminal Procedure
does not authorise the High Court to
review its judgment or order passed either
in exercise of its appellate, revisional or
original jurisdiction. Section 362 of the
Code prohibits the court after it has signed
its judgment or final order disposing a case
from altering or reviewing the said
judgment or order except to correct a
clerical
or
arithmetical
error.
This
prohibition is complete and no criminal
court can review its own judgment or order
after it is signed. By the first order dated
31.05.2000, the High Court rejected the
prayer of the respondent for quashing the
criminal proceeding. This order attained its
552 INDIAN LAW REPORTS ALLAHABAD SERIES
finality. By the impugned order, the High
Court reversed its earlier order and
quashed the criminal proceeding for want
of proper sanction. By no stretch of
imagination it can be said that by the
impugned order the High Court only
corrected any clerical or arithmetical
error. In fact the impugned order is an
order of review, as the earlier order was
reversed, which could not have been done
as there is no such provision under the
Code of Criminal Procedure, but there is
an interdict against it."

29. Similarly, in R.Annapurna vs.
Ramadugu Anantha Krishna Sastry and
others (2002) 10 SCC 401, the Apex Court
had held that High Court had no power to
recall or review its own order. Relevant
para 5 of the judgment is extracted here as
under :

"When appellant came to know of the
said order, she moved the High Court with
a prayer to recall the said order, but that
was dismissed on the premise that the High
Court has no power to recall or review its
own order. To that extent, the High Court
was correct. Hence, the special leave filed
by the appellant challenging the order
passed on the recall petition SLP (Crl.) No.
976/1998 has been dismissed by us."

30. Similar view was taken in State
Represented by DSP, SB CID, Chennai
vs. K.V. Rajendran and others (2008) 8
SCC 673. Relevant para 5 of the judgment
is extracted here as under :

"22. As noted hereinearlier, Section
362 of the Code prohibits reopening of a
final order except in the cases of clerical or
arithmetical errors. Such being the position
and in view of the expressed prohibition in
the Code itself in the form of Section 362,
exercise of power under Section 482 of the
Code cannot be exercised to reopen or
alter an order disposing of a petition
decided on merits.

.....

25. As noted hereinearlier, Section
362 of the Code prohibits a Court from
making alternation in a judgment after the
final order or Judgment was signed by the
Court disposing of the case finally except to
correct clerical or arithmetical errors. In
our view, therefore, Section 362 of the
Code cannot apply in the facts and
circumstances of the present case. There
was no clerical or arithmetical error in the
order."

31. In Sunita Jain vs. Pawan Kumar
Jain and others (2008) 2 SCC 705 the
Apex Court held as under :

"31. The section makes it clear that a
Court cannot alter or review its judgment
or final order after it is signed except to
correct clerical or arithmetical error. The
scheme of the Code, in our judgment, is
clear that as a general rule, as soon as the
judgment is pronounced or order is made
by a Court, it becomes functus officio
(ceases to have control over the case) and
has no power to review, override, alter or
interfere with it.

32. No doubt, the section starts with
the words "Save as otherwise provided by
this Code". Thus, if the Code provides for
alteration, such power can be exercised.
For instance, Sub-section (2) of Section
127. But in absence of express power,
alteration or modification of judgment or
order is not permissible.

33. It is also well settled that power of
review is not an inherent power and must
be conferred on a Court by a specific or
express provision to that effect. (Vide Patel
Narshi
Thakershi
and
Ors.
v.
Shri
1 All. Yaqoob Husain & Ors. Vs. State of U.P.
553
Pradyumansinghji Arjunsinghji (1971) 3
SCC 844). No power of review has been
conferred by the Code on a Criminal Court
and it cannot review an order passed or
judgment pronounced."

32. In Surya Baksh Singh vs. State
of Uttar Pradesh (2014) 14 SCC 222, the
Apex Court while laying down guidelines,
had held that High Court cannot dismiss an
appeal for non prosecution simplicitor
without
examining
the
merits.
Their
Lordships further held that the Court is not
bound to adjourn the matter if both the
appellant or his counsel/lawyer are absent.
Further Court can dispose of the appeal
after perusing the record and judgment of
the trial court, and also if the case is
decided on merits in the absence of the
appellant, the higher Court is the remedy in
the situation. Relevant para 24 of the
judgment is extracted here as under :

"It seems to us that it is necessary for
the Appellate Court which is confronted
with the absence of the convict as well as
his Counsel, to immediately proceed
against the persons who stood surety at the
time when the convict was granted bail, as
this may lead to his discovery and
production in Court. If even this exercise
fails to locate and bring forth the convict,
the Appellate Court is empowered to
dismiss
the
appeal.
We
fully
and
respectfully
concur
with
the
recent
elucidation of the law, profound yet
perspicuous, in K.S. Panduranga v. State of
Karnataka (2013) 3 SCC 721. After a
comprehensive
analysis
of
previous
decisions our learned Brother had distilled
the legal position into six propositions:
(SCC p.734, para 19)

"19.1.that the High Court cannot
dismiss an appeal for non-prosecution
simpliciter without examining the merits;

19.2. that the Court is not bound to
adjourn the matter if both the Appellant or
his Counsel/lawyer are absent;

19.3. that the Court may, as a matter
of prudence or indulgence, adjourn the
matter but it is not bound to do so;

19.4. that it can dispose of the appeal
after perusing the record and judgment of
the trial court.

19.5. That if the accused is in jail and
cannot, on his own, come to court, it would
be advisable to adjourn the case and fix
another date to facilitate the appearance of
the Appellant-accused if his lawyer is not
present, and if the lawyer is absent and the
court deems it appropriate to appoint a
lawyer at the State expense to assist it,
nothing in law would preclude the court
from doing so; and

19.6. That if the case is decided on
merits in the absence of the Appellant, the
higher court can remedy the situation."

33. In case of Mohammed Zakir vs.
Shabana and Ors. (2018) 15 SCC 316, the
Apex Court held that however patent error
is there, the order can only be corrected in
the process known to law and not under
Section 362 of the Code of Criminal
Procedure. Relevant para 4 of the judgment
is extracted here as under :

"The High Court should not have
exercised the power Under Section 362
Code
of Criminal Procedure
for a
correction on merits. However patently
erroneous the earlier order be, it can only
be corrected in the process known to law
and not Under Section 362 Code of
Criminal Procedure The whole purpose of
Section 362 Code of Criminal Procedure is
only to correct a clerical or arithmetical
error. What the High Court sought to do in
the impugned order is not to correct a
clerical or arithmetical error; it sought to
554 INDIAN LAW REPORTS ALLAHABAD SERIES
rehear the matter on merits, since,
according to the learned Judge, the earlier
order was patently erroneous. That is
impermissible under law. Accordingly, we
set aside the impugned order dated
28.04.2017."

34. In a recent decision in case of
Sanjeev Kapoor vs. Chandana Kapoor &
Ors. AIR 2020 SC 1064, His Lordship
Ashok Bhushan, J. while dealing with the
bar of Section 362 held as under :

"18. The Legislative Scheme as
delineated by Section 369 of Code of
Criminal Procedure, 1898, as well as
Legislative Scheme as delineated by
Section
362
of
Code
of
Criminal
Procedure, 1973 is one and the same. The
embargo put on the criminal court to alter
or review its judgment is with a purpose
and object. The judgments of this Court as
noted above, summarised the law to the
effect that criminal justice delivery system
does not cloth criminal court with power to
alter or review the judgment or final order
disposing the case except to correct the
clerical or arithmetical error. After the
judgment delivered by a criminal Court or
passing final order disposing the case the
Court becomes functus officio and any
mistake or glaring omission is left to be
corrected only by appropriate forum in
accordance with law.

35. During the course of argument a
recent judgment dated 16.11.2020 rendered
by Hon'ble Apex Court in Criminal
Appeal Nos.750-751 of 2020 Parveen vs.
State of Harayana was placed, where a
criminal revision was dismissed for want of
prosecution and not on merit, and their
Lordships were of the view that a revision
cannot be dismissed in default and the same
was restored to its original number.
Relevant paras 7 and 8 of the judgment are
extracted here as under :

"7. The High Court, in our view, was
manifestly in error in rejecting the revision
in default, on the ground that the
appellant's advocate had remained absent
on the previous four occasions. Since the
revision before the High Court arose out of
an order of the conviction under the Arms
Act, the High Court ought to have
appointed an Amicus Curiae in the absence
of counsel, who has been engaged by the
Legal Services Authority, Rohtak. The
liberty of a citizen cannot be taken away in
this manner.

8. In the circumstances, we are of the
view that it would be appropriate to allow
this appeal and set aside the impugned
orders of the High Court dated 11
February 2020 and 16 July 2020. CRR
No.1316 of 2018 is restored to the file of
the High Court. Since during the pendency
of the Special Leave Petition, the appellant
was admitted to bail by this court and the
appellant was on bail during the pendency
of the revision before the High Court, the
order enlarging the appellant on bail shall
continue to remain in operation pending
the disposal of the revision by the High
Court. The appellant shall cooperate in the
disposal of the revision."

36. Coordinate Bench of this Court in
Criminal Revision No.2930 of 2012 (Smt.
Farhana vs. State of U.P. and Another)
vide order dated 02.4.2019 had held once
an order was signed by the Court disposing
of a case, no Court shall alter or review the
same except to correct a clerical or
arithmetical error.

37. Tracing out the legislative history
of an enactment in the earlier Code, Section
369 was similar to Section 362 of the
1 All. Yaqoob Husain & Ors. Vs. State of U.P.
555
present Code of Criminal Procedure, 1973.
The minority view taken by the Full Bench
of this Court in Raj Narain and others
(supra) was upheld by the Supreme
Court in case of State of Orissa vs. Ram
Chander Agarwala and others (supra)
and since then it has been constant view of
the Apex Court that once the judgment or
order is pronounced and signed by the
Court, it becomes functus officio and the
power is only limited to the correction of
clerical and arithmetical error and nothing
beyond that.

38. Recalling the order would amount
to setting aside the earlier order passed by
the coordinate Bench and restoring the case
for rehearing afresh.